Bryant v. School Bd. of Duval County, Fla.Bryant v. School Bd. of Duval County, Fla.
Glenn K. BRYANT and LeRoy Bryant, Appellants,
v.
Thе SCHOOL BOARD OF DUVAL COUNTY, FLORIDA, a Body Corporate, Robert E. Rupp and Roy R. Stasco, Appellees.
District Court of Appeal of Florida, First District.
*419 William M. Howell of Howell, Liles, Braddock & Milton, Jacksonville, for appellants.
Noah Jenerette, Jr. and Carle A. Felton, Jr. of Boyd, Jenerette, Leemis & Staas, William G. Cooper and John F. MacLennon of Kent, Watts, Durden, Kent & Mickler, Jacksonville, for appellees.
ERVIN, Judge.
The issue before us is whether appellants' amended complaint sufficiently alleged negligence on the part of appellees so as to avoid an order of dismissal. Because the case involves allegations against a governmental employer, we are also called upon to analyze the effect of certain 1980 amendments to Florida's sovereign immunity law on pending and future cases relating to pleading, and to pending cases relating to joinder of parties, the parties' rights of access to the courts, and their vested rights to maintain a suit. The latter three areas are all constitutional in nature.
Appellants Glenn and LeRоy Bryant seek reversal of a final judgment dismissing their amended complaint with prejudice. We agree with their contentions, and reverse and remand with directions.
The pleadings reveal that a group of students were permitted by defendants to organize a club, known as the Omega Club. *420 The club, like all other сlubs at Forrest High School in Jacksonville, had to obtain Principal Stasco's approval for any outings held outside school hours and, according to school regulations, it was prohibited from hazing prospective members at initiation ceremonies, and was required to have a faculty member present at all the club activities and meetings. Appellee Rupp was assigned as the faculty advisor for the Omega Club, which allegedly had a well-known reputation for conducting activities that violated school board regulations, such as consumption of alcoholic beverages. As a result of this reputation, it was alleged that the school was required to monitor closely the club's activities.
One evening in October, 1975, club members held a meeting at the school to plan an initiation ceremony. Rupp knew that the meeting was going to be held, but for reasons unknown, he did not attend. As part of initiation, the club members decided to conduct a hazing ceremony. Rupp did not attend the hazing/initiation ceremony, but Glenn Bryant, a student and prospective member, did. During the hazing, he incurred an injury resulting in the severance of his spinal cord. This caused a permanent paralysis from the nеck down.[1] Glenn, and his father, LeRoy Bryant, filed suit against the School Board, and its agents Stasco and Rupp, grounded on claims of negligence.[2]
The complaint's first two counts allege that the school board, through its two agents, were guilty of simple negligence. The appellants predicate their theory of negligence upon the board's policy, expressed in its duly adopted rules, that no outing could occur without permission of the school principal, and if it occurred, it had to be attended by a faculty adviser. Appellants have alleged that Rupp knew of the club's reputation, the planning session, the initiation, and the planned hazing ceremony. Assuming these facts to be true, the school board and its agents had a duty to execute and implement board policy without negligence. Hollis v. School Board of Leon County,
However, any analysis of a negligence action is not complete without considering the issue of causation. To be liable, appellee's actions must be deemed by law to be the proximate cause of Bryant's injuries. "The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred." Pope v. Pinkerton-Hays Lumber Company,
However, the original negligent actor may be liable if the intervening cause is foreseeable. Gibson, supra, at 522. If the harm that occurred is within the scope of the danger or risk attributable to defendant's negligent conduct, then it is deemed foreseeable. There are three ways in which the harm may fall within the scope of danger: First, the legislature may specify the type of harm. Id. Second, if the same type of harm has occurred previously due to the same type of negligent conduct, and the tortfeasor has actual knowledge of this, liability сan be established. Gibson, supra, at 522. Third, liability can be made out if the negligence complained of has resulted in harm so frequently "`in the field of human experience'" that harm may be expected to happen again. Gibson, supra, at 522-523; see also, Pinkerton-Hays Lumber Company v. Pope,
Proximate cause and foreseeability are essential negligence principles that must be alleged. Bryant v. Jax Liquors, supra, fn. 1. We consider that the complaint sufficiently alleges these key points, based on the tests enumerated in Gibson, supra. The complaint alleged the known dangers of hazing and the free-wheeling manner in which the Omega Club members traditionally conducted themselves. It also alleged that the legislative voice for school affairs (the School Board) had adopted rules that provide a standard to which students are required to conform. Suсh allegations come within both the first and third methods by which a specified risk may be deemed foreseeable. See Gibson, supra, at 522. Foreseeability is the measuring stick by which proximate cause is determined. Vining v. Avis Rent-A-Car Systems, Inc.,
Count III of the complaint was directed against Rupp and Stasco in their individual capacities. It, like the first two counts against the Board, was apparently based upon "simple" or "ordinary" negligence, because the two individuals' acts were termed as being merely "careless". In determining the validity of this theory of negligence, two questions must be answered: (1) Is such a suit precluded by virtue of the 1980 amendments to the Florida Sovereign Immunity Act?, and (2) if not, should the action against the two agents in their individual capacities, alleging simple negligence, be severed from the remaining counts alleged?
In the closing hours of the 1980 legislative session, Section 768.28(9) was amended. See Laws of Florida, Chapter 80-271, § 1. The amendment bars any suit against a governmental employee either individually or in his official capacity, unless that employee has acted with a willful or wanton disregard of one's human rights, safety or property, or in bad faith, or with malicious purpose. The effect of the statute as amendеd is that the employee may only be sued in his individual capacity for willful and wanton conduct for which the governmental employer remains excused from liability. The amendment was made applicable to all actions pending before the trial or appellate courts on July 1, 1980, the effеctive date of the act. Laws of Florida, Chapter 80-271, § 4. Bryant argues that this revision usurps his right to sue appellees Rupp and Stasco for ordinary negligence, *422 which had become vested under the Florida Constitution of 1968, Article I, Section 9, since the suit was filed long before the statute was amended. Indеed, this right was explicitly recognized by District School Board of Lake County v. Talmadge,
Without addressing the question whether the statute bars Bryant's access to the courts, we agree with Bryant's argument that the statute's abolition of his right to sue Rupp and Stasco for ordinary negligence is unconstitutional since it affects rights which had become vested. See State of Florida, Department of Transportation v. Knowles,
In their supplemental brief, the Bryants refer to a clause in the amended version of Section 768.28(9), Florida Statutes (Supp. 1980), whiсh states that no governmental employee shall be named as party defendant in any action unless the employee has acted in a wanton or willful manner or with malicious purpose or in bad faith. This clause, like the rest of the act, is expressly made applicable to pending сases in the trial or appellate courts. This presents a problem as to whether we should remand with an order to sever the action against Rupp and Stasco from the action against the School Board, since the practical effect of this amendment is to permit a suit only agаinst the governmental entity based on ordinary negligence of its agent(s) or against only an employee who has acted wantonly. Because this affects the issue of joinder during the pendency of this case's pre-existing prosecution, we find that the legislature has intruded into a matter of practice and рrocedure. We decline to direct a severance.
Matters of practice and procedure, as opposed to matters of substantive law and rights, are reserved exclusively to the judiciary, more specifically, the rulemaking powers of the Supreme Court. "Substantive rights are those existing for their own sake and constituting the normal legal order of society, i.e., the rights of life, liberty, property and reputation." In re Florida Rules of Criminal Procedure,
In examining the mandatory late joinder of an insurance company as required by statute, the Florida Supreme Court recently indicated that such a requirement is a matter of practice and procedure. See Markert v. Johnson,
The fourth count is directed against Rupp and Stаsco, but it is unclear whether Rupp and Stasco are being sued individually or in their capacity as agents of the school board, and whether the theory of negligence espoused in this count can be construed as "willful or wanton."
Suit is permitted against a governmental employee only in his individual capacity, and not against his governmental employer, or against the employee in his official capacity, if the employee's conduct toward the aggrieved plaintiff was in bad faith, or with malicious purpose, or in "a manner exhibiting wanton or willful disregard of human rights, safety, or property." District School Board of Lake County v. Talmadge, supra. This is based on the command of Section 768.28(9), Florida Statutes, the sovereign immunity statute.
Additionally, we construe the Bryants' use of the phrase "gross and reckless" as being within the ambit of the phrase "wanton and willful misconduct" as used in Section 768.28(9).[4] Thus, Count IV is only actionable against Rupp and Stasco in their individual capacities, and not against them as agents of the Board.
To conclude, Bryant has alleged a cause of action against the Board, Rupp and Stasco in both their official and individual capacities in ordinary negligence, and against Rupp and Stasco, individually, based on a wanton disregard of Bryant's human rights, safety or property as permitted by Talmadge, supra.
The ruling below is reversed and remanded for further proceedings not inconsistent with this opinion as to all counts of the Bryants' amended complaint.
LARRY G. SMITH and SHIVERS, JJ., concur.
NOTES
Notes
[1] In Bryant v. Jax Liquors,
[2] LeRoy Bryant's cause of action is essentially a re-allegation of Glenn Bryant's complaint. He sеeks compensation for medical bills and loss of services of his son.
[3] See Fla. Const. of 1968, Art. 1, § 21. Kluger, supra, at 4 states:
... that where a right of access to the courts for redress for a particular injury has been provided by statutory law pre-dating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the state pursuant to Fla. Stat. § 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.
[4] Courts in other states apparently support the view that the terms reckless and wanton are interchangeable. See Hughes v. Southern Haulers, Inc.,